- (1.) This civil second appeal under Section 100 of the C.P.C. has been preferred by the appellants/plaintiff being aggrieved by the judgment and decree dated 2.12.2011 passed by learned Additional District Judge No.1, Bhilwara in Civil First Appeal No.1/2007, whereby the learned lower appellate court dismissed the appeal filed by the appellants/ plaintiff and affirmed the judgment and decree dated 19.12.2006 passed by learned Additional Civil Judge (Junior Division) No.2, Bhilwara in Civil Original Suit No.298/1992, whereby the suit for permanent injunction filed by the appellants/plaintiff has been dismissed.
(2.) The brief facts set out in the memo of appeal are that a civil suit was filed by the plaintiff-Firm through its proprietor Shri Radhey Shyam Nathani against the respondents-defendants stating inter alia that on application of plaintiff, the defendants No.3 & 4 granted lease with respect of soap stone and china clay mine for an area of 69.2450 hectare in village Madhopur, Tehsil Jahajpur, District Bhilwara. The plaintiff after demarcation of land, erected pillars in the area and started mining work. However, the defendants No.1 & 2 while raising dispute, removed the pillars of plaintiff and placed their pillars. They claimed that area allotted to the plaintiff belonged to them. It has been further averred that there are common pillars between the area of the plaintiff and defendants No.1 & 2; and defendant No.1 in collusion with defendant No.4 had displaced the common pillars and wanted to continue illegal mining activity in the leased area of the plaintiff. It has been further averred that the defendant No.4 was not showing the actual lease area on the basis of field books. As the dispute regarding the lease granted to the plaintiff and the defendants No.1 & 2 arose; actual place of pillars was not made known to the plaintiff and upon issuing notice to the plaintiff for cancellation of lease on 11.11.1991, the plaintiff filed a suit for permanent injunction seeking relief to the effect that defendants be directed not to encroach upon the area of the plaintiff nor they should dump debris and further, the defendants may be restrained from excavation of mineral from mines of the plaintiff. It was also prayed that plaintiff may be permitted to undertake mining activity as per terms and conditions of the lease.
(3.) The defendants No.1 & 2 filed written statement denying the plaint averments. It was averred in the written statement that the plaintiff was undertaking illegal mining in their area. Upon the complaint of the plaintiff, an enquiry was made, survey was also done about 4-5 times and the complaint of the plaintiff was found to be false. It was further averred that the mining lease of plaintiff was cancelled by State Government on 31.5.1993.;